Docket: IMM-3047-15
Citation:
2016 FC 170
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 9, 2016
PRESENT: The Honourable Mr. Justice Gascon
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BETWEEN:
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AMANPREET KAUR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Amanpreet Kaur, her brother
Parminder Singh and her sister Amandeep Kaur are Indian citizens. They are also known,
respectively, by the names Mandeep Kaur, Sarabjot Singh and Sandeep Kaur. In
2001, Ms. Kaur arrived in Canada from Abu Dhabi. She was accompanied by
her parents, her sister, her brother and their younger brother, Balraj Singh.
Before her departure, Canadian authorities issued her a temporary resident visa
in the name of Amanpreet Kaur. At the time, Ms. Kaur was a minor child.
[2]
After their arrival in Canada, Ms. Kaur’s
parents applied for refugee protection for themselves and their children.
Canadian authorities approved these applications for the mother and the
children. However, Citizenship and Immigration Canada [CIC] subsequently
learned that Ms. Kaur and her family had obtained refugee and permanent
resident status in Canada using false identities. CIC then revoked these
statuses.
[3]
In February 2013, a CIC immigration officer
approved the application for permanent residence on humanitarian and
compassionate grounds for Ms. Kaur, who was then an adult, on the
condition that she comply with the statutory requirements, i.e., a medical
examination, a criminal record check, and possession of valid identity or
travel documents. However, on June 9, 2015, immigration officer
Marie-Géralde Georges [the officer] refused to grant Ms. Kaur permanent
resident status because she had failed to provide the documents required to
prove her identity under Section 178 of the Immigration and Refugee
Protection Regulations, SOR/2002‑227 [Regulations].
[4]
Today, Ms. Kaur is applying for judicial
review of this decision under subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27. She specifically claims that
the officer made an error when she insisted that she prove her identity [translation] “beyond
a reasonable doubt.” The Minister replied that the officer had
reasonably concluded that, pursuant to her review of the file and the proof
provided, her doubts as to Ms. Kaur’s identity had not been allayed.
[5]
The issue is to determine whether the officer
committed an error in law by inappropriately formulating the burden of proof
that Ms. Kaur had to meet to prove her identity in her application for
permanent residence.
[6]
For the reasons that follow, Ms. Kaur’s
application for judicial review is allowed because the Court finds that the
officer erroneously invoked and applied the criminal standard of proof, i.e.
proof beyond a reasonable doubt, in her assessment of Ms. Kaur’s identity.
However, it is clear that the officer should have used and applied only the
civil standard of proof, i.e. the balance of probabilities.
I.
Background
[7]
In her decision, the officer found that
Ms. Kaur had failed to provide the authentic identity documents required
under Sections 50 and 178 of the Regulations. The officer reviewed all the
documents that Ms. Kaur had sent to Canadian authorities since her
application for permanent residence had been approved on humanitarian and
compassionate grounds in February 2013.
[8]
More specifically, in January 2014,
Ms. Kaur had submitted to CIC a solemn declaration, a notarized
declaration from her mother indicating that she is her biological child, a copy
of her birth certificate, and a certified copy of the translation of the birth
certificate. Because Ms. Kaur’s parents had committed identity fraud, the
officer performed a detailed verification of Ms. Kaur’s documents and
submissions. Consequently, Indian authorities advised the officer that the
original birth certificate, which Ms. Kaur had submitted in September
2014, had been altered and did not match the certificate issued at the time of
her birth. The officer noted in her decision that an official document
containing any alteration, however minor, cannot be accepted.
[9]
The officer’s reasons also made reference to the
questions Ms. Kaur was asked regarding her passport. She was not satisfied
with Ms. Kaur’s response that she was no longer in possession of her
passport, nor was she satisfied with Ms. Kaur’s explanation as to why she
was unable to obtain her passport from the Indian Embassy in Canada, which she
required for her application for refugee protection. She pointed out that
Ms. Kaur had not provided any documents supporting her claim in this
regard. The officer therefore found that Ms. Kaur’s explanations regarding
the absence of her passport and her inability to obtain a valid passport lacked
credibility. The officer determined that Ms. Kaur had entered Canada with
a passport and visa indicating her true identity and that her passport had not
been seized by a smuggler as alleged, because her father had kept his. In
addition, because she had applied for refugee protection under a false name,
there was nothing to prevent a new passport from being issued in her real name.
[10]
The officer also noted in her decision that in
March 2015, Ms. Kaur sent her a new birth certificate obtained
through her uncle in February 2015, and the Canadian Embassy in India
confirmed its authenticity. However, the officer also noticed that the document
was issued after Ms. Kaur arrived in Canada and believed that the document
was obtained in order to satisfy immigration authorities and to contradict the
information obtained during the verification of the first birth certificate,
which proved to have been falsified.
[11]
Lastly, the officer gave little weight to
Ms. Kaur’s mother’s solemn declaration attesting to her daughter’s
identity because of her mother’s lack of credibility and the previous fraud she
had committed with Canadian authorities in the initial refugee claim.
[12]
After performing a complete review of the file,
the officer concluded her decision by stating that Ms. Kaur did not
demonstrate [translation] “beyond a reasonable doubt” that she is indeed Amanpreet
Kaur, and the officer was thus not satisfied with her identity.
II.
Analysis
[13]
The Minister argued that based on the officer’s
reasons, it was clear that the burden of proof on Ms. Kaur was not
excessive. He contended that the officer had made her decision based on facts
unrelated to the burden of proof, including the finding that Ms. Kaur had
submitted a falsified birth certificate and did not have the required
documents. The Minister argued that the issue of identity is a crucial element
in any application for permanent residence and that Ms. Kaur was simply
unable to provide the documents required by Canadian law.
[14]
At the hearing before the Court, the Minister’s
counsel added that the officer’s explicit finding referring to Ms. Kaur’s
failure to prove her identity [translation]
“beyond a reasonable doubt” at the end of her
reasons was not a key statement in the decision, qualifying it instead as [translation] “an
unfortunate phrase.” The Minister argued that the officer’s reasons were
sufficient to prove that she had applied the appropriate legal test in this
case, i.e. the balance of probabilities. In support of his arguments, the
Minister specifically cited Alam v. Canada (Minister of Citizenship and
Immigration), 2005 FC 4 [Alam] at paragraph 9.
[15]
The Court does not agree with the Minister’s
position and cannot accept the arguments submitted by the Minister’s counsel,
even though they were well articulated and presented at the hearing. Regardless
of how the Minister would like to portray the officer’s analysis and assessment
of the evidence, the fact remains that the burden of proof cited by the officer
was articulated clearly and transparently in the decision. The only mention of
the burden of proof by the officer is in the final paragraph of the decision, in
which she specifically states that [translation]
“after a complete review of this file, the applicant
has not proved to me beyond a reasonable doubt that she is Amanpreet Kaur.”
These words leave little room for interpretation.
[16]
This is an egregious error. It is clear that
this is not the burden of proof that applies when assessing the authenticity
and probative value of identity documents required for an application for
permanent residence. Rather, in his written submissions and at the hearing, the
Minister acknowledged that the burden to be applied was on the balance of
probabilities.
[17]
Admittedly, as established in Alam, cited
by the Minister, the Court will not intervene where the tribunal has
articulated “the gist of the appropriate standard of
proof” (Alam at paragraph 9). However, the Court will remit
a matter in circumstances where it is unclear which test has been applied or if
the wrong test has been applied (Srirenganathan v. Canada (Citizenship and
Immigration), 2015 FC 730 at paragraph 11; Canada (Citizenship and
Immigration) v. Neubauer, 2015 FC 260 at paragraph 24).
[18]
At any rate, Alam was not of great
assistance to the Minister. Justice O’Reilly states therein that when a court
has elevated the standard of proof, or when an excessive burden of proof is
imposed on the applicant, a new hearing should be ordered. He concludes that in
circumstances where the tribunal has made an error of law regarding a
fundamental issue, such as the appropriate standard of proof, the Court should
generally order a new hearing unless it is clear that the claim could not
possibly succeed (Alam at paragraph 16). Alam involved a
case where the standard of the balance of probabilities seemed to have been
elevated by the tribunal with respect to its application to the facts in this
case. The Court notes that the civil standard still applied and that the issue
in dispute was instead the modification and scope of the burden of balance of
probabilities that the applicant had in fact been required to satisfy.
[19]
However, this case is not one in which the
tribunal articulated the gist of the appropriate standard of proof, but one in
which it misstated how this standard was to be applied. Rather, this is a
situation where the officer clearly used the wrong standard of proof, thereby imposing
on Ms. Kaur an onerous burden of proof, which should apply only in
criminal cases. There is no doubt that this standard is inappropriate for
assessing an application for permanent residence and its statutory requirements
and that, in these circumstances, a new hearing is required. The Court cannot
support such a statement made without any qualification or reservation, nor can
it accept the Minister’s counsel’s suggestion that it simply be considered an
unfortunate phrase.
[20]
Moreover, the Minister did not provide any
references to excerpts from the decision that could suggest that despite the
clarity of the language used in her conclusion, the officer had in fact applied
the burden of balance of probabilities. Nothing in the decision allows the
Court to find that this statement by the officer is an insignificant blunder
that does not reflect the standard of proof used and that the burden of proof
imposed on Ms. Kaur was in fact less onerous. The Court also disagrees
with the Minister’s opinion that overall, the burden of proof is not a key
factor in the decision because Ms. Kaur made false statements and
submitted falsified documents in support of her application for permanent
residence.
[21]
The Court instead finds that upon reading the
officer’s reasons, it is impossible to determine whether the evidence at her
disposal would have sufficed to satisfy the burden of the balance of
probabilities. Since the only mention of burden of proof is found at the end of
the decision, everything indicates that this was indeed the legal test applied
by the officer throughout her analysis. The Court has no way of knowing
whether, guided by the burden of proof on a balance of probabilities, the
officer would still have found that the new birth certificate was not
sufficient to prove Ms. Kaur’s identity, or if her assessment of
Ms. Kaur’s explanation about her missing passport or her mother’s
credibility would have been different.
[22]
The Court is aware that if it refers the matter
back to CIC, the outcome may be the same after a new review conducted in light
of the civil standard of proof on a balance of probabilities. However, this is
an assessment that CIC must conduct and to which Ms. Kaur is entitled in
the decision regarding her application for permanent residence. Informed by these
reasons of the egregious error committed by the officer and the standard of
proof to be applied, another immigration officer might nevertheless come to a
similar conclusion. However, another officer might also come to a different
conclusion. The Court cannot say that the record leans so heavily against
granting Ms. Kaur’s application for permanent residence that referring the
matter back to CIC would serve no useful purpose (Lemus v. Canada
(Citizenship and Immigration), 2014 FCA 114 at paragraph 38).
[23]
That being said, the Court acknowledges that
immigration officers have a duty to defend the integrity of the immigration
system and Canadian legislation and to ensure that permanent residence is not
granted to people who cannot prove their identity or who attempt to do so under
false pretenses. However, in the performance of these duties, officers cannot
subject applicants for permanent residence to requirements or to a standard of
proof not applicable to Canadian civil cases.
III.
Conclusion
[24]
For the foregoing reasons, Ms. Kaur’s
application for judicial review must be allowed because the officer used an
incorrect legal test in finding that Ms. Kaur had not proved her identity
beyond a reasonable doubt.
[25]
The parties did not raise any questions for
certification in their written and oral representations and the Court agrees
that there are none in this case.
JUDGMENT
THE COURT ORDERS that:
1. The application for judicial review is
allowed;
2. The decision rendered on June 9,
2015 by immigration officer Marie Géralde Georges is rescinded;
3. The matter is referred back to
Citizenship and Immigration Canada for redetermination by another immigration
officer.
4. No serious questions of general
importance were certified.
“Denis Gascon”
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